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Ordinance 2017-28 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO.2017-28 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING A DEVELOPMENT AGREEMENT FOR KENDALL HOSPITALITY,LLC,YORKVILLE,ILLINOIS Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 9th day of May,2017 Prepared by and Return to: United City of Yorkville 800 Game Farm Road Yorkville,IL 60560 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on September 28,2017. Ordinance No. 2017-1!3 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING A DEVELOPMENT AGREEMENT FOR]KENDALL HOSPITALITY,LLC,YORKVILLE, ILLINOIS WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, pursuant to its powers and in accordance with the requirements of the Tax Increment Allocation Redevelopment Act of the State of Illinois, 65 ILCS 5/11-74.4-1, et seq., as from time to time amended(the "TIF Act"),the Mayor and City Council of the City(collectively, the "Corporate Authorities"), pursuant to Ordinance No. 2005-10A, adopted on February 8, 2005, and Ordinance Nos. 2005-1 OB and 2005-1 OC, adopted on February 15, 2005, respectively, approved the Tax Increment Financing Redevelopment Project and Plan for the US Route 34 and Illinois Route 47 (Countryside Shopping Center) (the "Redevelopment Plan") setting forth a plan for the development, redevelopment and revitalization of the redevelopment project area; designated a redevelopment project area consisting of approximately 19 acres generally located at Route 47 and Route 34 and commonly known as Countryside Shopping Center (the "Redevelopment Project Area" or "Subject Property"); and adopted tax increment allocation financing for the Redevelopment Project Area; and, WHEREAS, pursuant to Ordinance No. 2008-101, adopted November 25, 2008, and amended by Ordinance Number 2009-15, adopted March 24, 2009, the Corporate Authorities designated the Subject Property a "Business District" in accordance with the Business District Development and Redevelopment Act (65 ILCS 5/11-74.3 et seq.) (the "Business District Act") and adopted a development or redevelopment plan and imposed a one percent (1%) business Ordinance No.2017-as Page 2 district retailers' occupation tax and a one percent (1%) business district service occupation tax ("Business District Taxes") to pay business district project costs including the planning, execution and implementation of an approved business district plan; and, WHEREAS, the City shall hereafter amend Ordinance Number 2009-15 to impose a one percent(1%)hotel tax as authorized by the Business District Act; and, WHEREAS, the existence of factors which caused the Subject Property to be designated a "redevelopment project area" under the TIF Act and a Business District under the Business District Act and the extraordinary costs necessary for redevelopment have prevented private developer from developing, redeveloping, and revitalizing the Subject Property, which has, in turn,prevented development and construction of commercial enterprises thereon; and, WHEREAS, Kendall Hospitality, LLC, a Delaware limited liability company (the "Developer") has advised the City that it is prepared to acquire approximately 3.5 acres of the Subject Property (which acreage is currently vacant) for the purpose of constructing a four (4) story hotel with a minimum of eight (80) rooms and a 12,000 square foot banquet center (the "Project") on the condition that the City provides financial assistance in order to make the Project economically feasible; and, WHEREAS, the Corporate Authorities have determined that in order to induce the Developer to undertake the Project, it is in the best interests of the City, and the health, safety, morals, and welfare of the residents of the City, for the City to reimburse the Developer for certain costs in accordance with the terms and conditions set forth in a development agreement. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Ordinance No.2017-off$ Page 3 Section 1. That the Development Agreement for Kendall Hospitality, LLC, Yorkville, Illinois by and between the United City of Yorkville, Kendall County, Illinois and Kendall Hospitality, LLC, attached hereto and made a part hereof, is hereby approved and the Mayor, City Clerk, and City Administrator are hereby authorized to execute and deliver said Agreement and undertake any and all actions as may be required to implement its terms on behalf of the City. Section 2. This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. Passed Mot bythe City Council of the United City of Yorkville, Kendall County, Illinois, this day of , A.D. 2017. CITY CLE CARLO COLOSIMO y KEN KOCH JACKIE MILSCHEWSKI ARDEN JOE PLOCHER CHRIS FUNKHOUSER JOEL FRIEDERS SEAVER TARULIS y ALEJANDRO HERNANDEZ APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 5 day of SE PT-F-M$E 2 , A.D. 2017. R4 A I MXYCVR Attest: - /�;tt CITY CLERK Ordinance No.2017-oZg Page 4 DEVELOPMENT AGREEMENT FOR KENDALL HOSPITALITY,LLC,YORKVILLE,ILLINOIS THIS AGREEMENT dated as of the o?15 day of S c-PTF/K 6tk , 2017, by and between the United City of Yorkville, Kendall County, Illinois, a municipal corporation (hereafter the "City") and Kendall Hospitality, LLC, a Delaware limited liability company (hereafter"Developer"). WITNESSETH: WHEREAS,by Ordinance No. 2005-1 OA, adopted by the Mayor and City Council of the City (the "Corporate Authorities") on February 8, 2005, a Tax Increment Financing Redevelopment Project and Plan for the US Route 34 and Illinois Route 47 (Countryside Shopping Center) (hereinafter the "Redevelopment Plan") was approved, which Redevelopment Plan covered an area of approximately 19 acres generally located at Route 47 and Route 34 and commonly known as Countryside Shopping Center(the"Subject Property"); and, WHEREAS, by Ordinance No. 2005-1OB and No. 2005-I0C adopted by the Corporate Authorities on February 15, 2005, the City designated the Subject Property as a "redevelopment project area" and adopted tax increment financing pursuant to the Tax Increment Allocation Redevelopment Act(65 ILCS 5/11-74.4-1 et seq.) (hereinafter referred to as the "Ace'); and, WHEREAS, pursuant to Ordinance No. 2008-101, adopted November 25, 2008, and amended by Ordinance Number 2009-15, adopted March 24, 2009, the Corporate Authorities designated the Subject Property a "Business District' in accordance with the Business District Development and Redevelopment Act (65 ILCS 5/11-74.3 et seq.) (the "Business District Act') and adopted a development or redevelopment plan and imposed a one percent (1%) business district retailers' occupation tax and a one percent (1%) business district service occupation tax ("Business District Taxes") to pay business district project costs including the planning, execution and implementation of an approved business district plan; and, WHEREAS, the City shall hereafter amend Ordinance Number 2009-15 to impose a one percent(1%)hotel tax as authorized by the Business District Act; and, WHEREAS, the Developer has advised the City that it is prepared to acquire approximately 3.5 acres of the Subject Property (which acreage is currently vacant) for the purpose of constructing a four(4) story hotel with a minimum of eighty (80)rooms and a 12,000 square foot banquet center (the "Project") on the condition that the City provides financial assistance in order to make the Project economically feasible; and, WHEREAS, the City is prepared to assist the Developer but only in accordance with the terms and conditions hereinafter set forth and only after the City approves the development plan as the City recognizes that the Project at the Subject Property could add to the commercial services within the City and further the development of one of its primary commercial corridor. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth,the parties agree as follows: Section 1. Preambles. The foregoing preambles are hereby incorporated into this Agreement as if fully restated in this Section 1. Section 2. Developer's Obligations. A. The Developer covenants and agrees to deliver to the City for its approval of a plan for the construction of a four (4) story hotel with no less than eighty (80) rooms and a banquet center of approximately 12,000 square feet covering approximately three and one half(3 %2)acres of the Subject Property (the"Hotel Complex Property"). 2 B. On or before July 1, 2017, the Developer shall deliver to the City proof of the acquisition of the Hotel Complex Property and commence construction of the Project on or before December 31, 2017. C. On or before December 31, 2019, the Developer shall have completed construction of the Project in accordance with all permits as issued in conjunction with the approved plan, all applicable City codes and the terms of this Agreement. D. On or before December 31, 2019, the Developer shall have been issued a certificate of occupancy by the City for the hotel portion of the Project and commence operation thereof on or before March 1,2020. Section 3. Obligations on the part of the City. A. Upon issuance of a certificate of occupancy for the Subject Property, the City agrees to reimburse the Developer $700,000 for a portion of the cost of acquisition of the Hotel Complex Property. Section 4. Undertakings on the Part of Developer. A. The Developer hereby covenants and agrees to promptly pay, as the same become due, any and all taxes and governmental charges of any kind that may at any time be assessed with regard to its operation including all real estate taxes assessed against the Subject Property or any other location in the City owned or controlled by the Developer. B. The Developer shall indemnify and hold harmless the City, its agents,officers and employees against all injuries, deaths, losses, damages, claims, suits, liabilities,judgments, costs and expenses (including any liabilities,judgments, costs and expenses and reasonable attorney's fees) which may arise directly or indirectly from any third-party claims made against the City as 3 a result of the failure of the Developer or any contractor, subcontractor or agent or employee thereof(so long as such contractor, subcontractor or agent or employee thereof is hired by the Developer) to timely pay any contractor, subcontractor, laborer or material men; from any default or breach of the terms of this Agreement by the Developer; or from any negligence or reckless or willful misconduct of the Developer or any contractor, subcontractor or agent or employee thereof(so long as such contractor, subcontractor or agent or employee is hired by the Developer). The Developer shall, at its own cost and expense, appear, defend and pay all charges of attorneys, costs and other expenses arising therefrom or incurred in connection therewith. If any judgment shall be rendered against the City, its agents, officers, officials or employees in any such action, the Developer shall, at its own expense, satisfy and discharge the same. The paragraph shall not apply, and the Developer shall have no obligation whatsoever, with respect to any acts of negligence or reckless or willful misconduct on the part of the City or any of its officers, agents, employees or contractors. C. Upon commencement of operation of the hotel, the Developer covenants and agrees to collect the one percent (1%) hotel tax as imposed by the City pursuant to the Business District Act and shall remit said hotel tax to the City on April 1, July 1, October 1 and December 1 each year of operation of the hotel at the Hotel Complex Property. D. Upon commencement of operation of the banquet center,the Developer covenants and agrees to collect the retail sales tax and service occupation tax of one percent (1%) imposed by the City pursuant to the Business District Act and remit same to the Illinois Department of Revenue as required by said Business District Act. 4 E. The Developer covenants and agrees to continue to operate the eighty (80) room hotel and 12,000 (twelve thousand) square foot banquet center throughout the term of this Agreement. Section S. Term. Unless earlier terminated pursuant to Section 18, the term of this Agreement shall commence on the date of execution and end December 31, 2029 (the "Termination Date"). Section 6. Verification of Sales Taxes. The Developer shall deliver to the City copies of its reports to the Illinois Department of Revenue of all remittances of all sales and service taxes. Section 7. No Liability of City for Others for Developer's Expenses. The City shall have no obligation to pay costs of the Project or to make any payments to any person other than the Developer, nor shall the City be obligated to pay any contractor, subcontractor, mechanic, or material man providing services or materials to the Developer for the development of the Project. The Developer agrees to comply with the Illinois Prevailing Wage Act, 820 ILCS 130/0.01 et seq., as may be required. Section 8. Time; Force Majeure. Time is of the essence of this Agreement, provided, however, a party shall not be deemed in material breach of this Agreement with respect to any obligations of this Agreement on such party's part to be performed if such party fails to timely perform the same and such failure is due in whole or in part to any strike, lock-out, labor trouble (whether legal or illegal), civil disorder, weather conditions, failure or interruptions of power, restrictive governmental laws and regulations, condemnations, riots, insurrections, acts of terrorism, war, fuel shortages, accidents, casualties, floods, earthquakes, fires, acts of God, epidemics, quarantine restrictions, freight embargoes, acts caused directly or indirectly by the 5 other party (or the other party's agents, employees or invitees) or similar causes beyond the reasonable control of such party("Force Majeure"). If one of the foregoing events shall occur or either party shall claim that such an event shall have occurred, the party to whom such claim is made shall investigate same and consult with the party making such claim regarding the same and the party to whom such claim is made shall grant any extension for the performance of the unsatisfied obligation equal to the period of the delay,which period shall commence to run from the time of the commencement of the Force Majeure; provided that the failure of performance was reasonably caused by such Force Majeure. Section 9. Assignment. This Agreement may not be assigned by the Developer without the prior written consent of the City,which consent shall not be unreasonably withheld. Section 10. Waiver. Any party to this Agreement may elect to waive any remedy it may enjoy hereunder, provided that no such waiver shall be deemed to exist unless the party waiving such right or remedy does so in writing. No such waiver shall obligate such party to waive any right or remedy hereunder, or shall be deemed to constitute a waiver of other rights and remedies provided said party pursuant to this Agreement. Section 11. Severability. If any section, subsection,term or provision of this Agreement or the application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of said section, subsection, term or provision of this Agreement or the application of same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. Section 12. Notices. All notices, demands, requests, consents, approvals or other instruments required or permitted by this Agreement shall be in writing and shall be executed by 6 the party or an officer, agent or attorney of the party, and shall be deemed to have been effective as of the date of actual delivery, if delivered personally, or as of the third (3rd) day from and including the date of posting, if mailed by registered or certified mail, return receipt requested, with postage prepaid, addressed as follows: To the Developer. Sonny Shah Kendall Hospitality,LLC 17 Tuscan Ct. Oakbrook, IL 60523 With a copy to: Amin Law Offices Ltd. 1900 E. Golf Road, Suite 1120 Schaumburg, IL 60173 To the City: United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Attention: City Administrator With a copy to: Kathleen Field Orr Kathleen Field Orr&Associates 53 West Jackson Blvd., Suite 964 Chicago, Illinois 60604 Section 13. Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Section 14. No Joint Venture,Agency or Partnership Created. Neither anything in this Agreement nor any acts of the parties to this Agreement shall be construed by the parties or any third person to create the relationship of a partnership, agency, or joint venture between or among such parties. 7 Section 15. General Warranties and Covenants of the Developer. A. The Developer hereby covenants and agrees to promptly pay, as the same become due, any and all taxes and governmental charges of any kind that may at any time be lawfully assessed including all real estate taxes assessed against the Subject Property or any other location in the City owned or controlled by the Developer. B. The Developer covenants and agrees that at all times it shall comply with all applicable zoning ordinances and regulations, building code, fire code and all other City ordinances,resolutions and regulations. C. The Developer hereby covenants and agrees to comply with all applicable laws, rules and regulations of the State of Illinois, the United States and all agencies of each of them having jurisdiction over it. Section 16. No Discrimination — Construction. The Developer for himself and his successors and assigns agrees that in the construction of the improvements at the Subject Property provided for in this Agreement the Developer shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Developer shall take affirmative action to require that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising and solicitations or advertisements for employees; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Developer agrees to post 8 in conspicuous places, available to employees and applicants for employment, notices, which may be provided by the City, setting forth the provisions of this nondiscrimination clause. Section 17. Remedies—Liability. A. If, in the City's judgment, the Developer is in material default of this Agreement, the City shall provide the Developer with a written statement indicating in adequate detail any failure on the Developer's part to fulfill its obligations under this Agreement. Except as required to protect against further damages, the City may not exercise any remedies against the Developer in connection with such failure until thirty (30) days after giving such notice. If such default cannot be cured within such thirty (30) day period, such thirty (30) day period shall be extended for such time as is reasonably necessary for the curing of the same, so long as the Developer diligently proceed with such cure; if such default is cured within such extended period, the default shall not be deemed to constitute a breach of this Agreement. A default not cured as provided above shall constitute a breach of this Agreement. Any failure or delay by the City in asserting any of its rights or remedies as to any default or alleged default or breach shall not operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such default or breach. B. If the Developer materially fails to fulfill his obligations under this Agreement after notice is given by the City and any cure periods described in paragraph (a) above have expired, the City may elect to terminate this Agreement or exercise any right or remedy it may have at law or in equity, including the right to specifically enforce the terms and conditions of this Agreement. If any voluntary or involuntary proceeding in any court or tribunal shall be instituted to declare the Developer insolvent or unable to pay the Developer's debts, or the 9 Developer makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for either one of the Developer or for the major part of the Developer's property, the City may elect, to the extent such election is permitted by law and is not unenforceable under applicable federal bankruptcy laws, but is not required, with or without notice of such election and with or without entry or other action by the City,to forthwith terminate this Agreement. C. If, in the Developer's judgment, the City is in material default of this Agreement, the Developer shall provide the City with a written statement indicating in adequate detail any failure on the City's part to fulfill its obligations under this Agreement. The Developer may not exercise any remedies against the City in connection with such failure until thirty(30) days after giving such notice. If by its nature such default cannot reasonably be cured within such thirty (30) day period, such thirty (30) day period shall be extended for such time as is reasonably necessary for the curing of the same, so long as the City diligently proceeds with such cure; if such default is cured within such extended period, the default shall not be deemed to constitute a breach of this Agreement. A default not cured as provided above shall constitute a breach of this Agreement. Any failure or delay by the Developer in asserting any of their rights or remedies as to any default or any alleged default or breach shall not operate as a waiver of any such default or breach of shall not operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such default or breach. D. In addition to any other rights or remedies, a party may institute legal action against the other party to cure, correct or remedy any default, or to obtain any other remedy consistent with the purpose of this Agreement, either at law or in equity, including, but not limited to the equitable remedy of an action for specific performance; provided, however, no 10 recourse under or upon any obligation contained herein or for any claim based thereon shall be had against the City, its officers, agents, attorneys, representatives or employees in any amount or in excess of any specific sum agreed to be paid by the City hereunder, and no liability, right or claim at law or in equity shall be attached to or incurred by the City, its officers, agents, attorneys, representatives or employees in any amount in excess of any specific sums agreed by the City to be paid hereunder and any such claim is hereby expressly waived and released as a condition of and as consideration for the execution of this Agreement by the City. Notwithstanding the foregoing, in the event either party shall institute legal action against the other party because of a breach of any Agreement or obligation contained in this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees, incurred in connection with such action. E. The rights and remedies of the parties are cumulative and the exercise by a party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or for any other default by the other party. Section I& Amendment. This Agreement, and any exhibits attached to this Agreement, may be amended only in a writing signed by all the parties with the adoption of any ordinance or resolution of the City approving said amendment, as provided by law, and by execution of said amendment by the parties or their successors in interest. Except as otherwise expressly provided herein, this Agreement supersedes all prior agreements, negotiations and discussions relative to the subject matter hereof. 11 Section 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [SIGNATURE PAGE TO FOLLOW] 12 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers on the above date at Yorkville,Illinois. United City of Yorkville, an Illinois municipal corporation By: .'It ayor Attest: City Clerk Kendall Hospitality,LLC, a Delaware limited liability company By: Z UIA— Attest: Secretary 13